[1] This is an appeal from an Order of Justice von Finckenstein of the Federal Court (the applications judge) dated January 27, 2004 (2004 FC 125) dismissing the appellant's application for judicial review of a decision of the Public Service Commission Appeal Board (the Appeal Board) dated May 6, 2002.

[2] On appeal from the decision of the selection board, the Appeal Board maintained that the selection board's assessment of the candidates was based on the merit principle and that a reasonable connection existed between the qualifications established by the employer and the testing method utilized by the selection board. While the Appeal Board did allow the appeal to the extent that it found that the selection board had erred in its assessment of the third-ranking candidate, this finding is of no practical benefit to the appellant.

[3] The applications judge dismissed the application for judicial review and the appellant now appeals to this Court.

Questions in Issue and Standard of Review

[4] The questions raised in this appeal are whether the applications judge erred in his conclusion 1) that the Appeal Board was correct when it determined that it lacked jurisdiction regarding knowledge thresholds, and 2) that the Appeal Board had dealt appropriately with all of the appellant's allegations.

[5] This Court must also assess whether the appropriate standard of review was applied by the applications judge.

[6] The applications judge is required to apply the pragmatic and functional approach to determine the appropriate standard of review of the Appeal Board's decision. This Court has noted that the Supreme Court of Canada's decision in Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19">2003 SCC 19 reinforced the primacy of the pragmatic and functional approach in the review of administrative decisions and mandated a multi-factorial approach for determining the standard of review in every case where there is a review of an administrative decision-maker: Wyeth-Ayerst Canada Inc. v. Canada (Attorney General), 2003 FCA 257, [2003] F.C.J. No. 916 at paragraphs 8-9 (C.A.) (QL).

[7] The Supreme Court also discussed the standard of review which a court must apply to the decision of a reviewing judge at the secondary appellate level: Dr. Q, supra at paragraphs 43-44. As this Court is dealing with the appellate review of a lower court, not the judicial review of an administrative decision-maker, the principles outlined in Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33">2002 SCC 33 apply. Questions of law are to be reviewed on a standard of correctness while questions of fact or mixed questions of fact and law should only be disturbed in the presence of palpable and overriding error.

[8] Since the question of the proper standard of review is a question of law, this Court must therefore determine whether the applications judge chose and applied the proper standard of review on the correctness standard. If the applications judge has erred in choosing and applying the standard of review, this Court must correct the error, substitute the appropriate standard of review, and assess or remit the administrative decision-maker's decision on that basis: WyethAyerst Canada Inc., supra at paragraph 10.

[9] Rather than performing his own pragmatic and functional analysis, the applications judge relied solely on prior case law to determine the appropriate standard of review. Neither of the cases which form the basis of the applications judge's determination of the standard of review of the Appeal Board's decision apply the pragmatic and functional approach. Consequently, it is appropriate for this Court to apply the pragmatic and functional approach to determine the correct standard of review and, if necessary, to assess the Appeal Board's decision on that basis.

[10] The Supreme Court in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at paragraph 26 established that "[t]he central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the statute creating the tribunal whose decision is being reviewed."

[11] Accordingly, this analysis will begin with an examination of the legislative intent of thePublic Service Employment Act, R.S.C., 1985, c. P-33 (the PSEA). The Supreme Court held at paragraph 36 of Pushpanathan, supra that when a statute has strong policy aspects, a more deferential approach is required:

[w]here the purposes of the statute and of the decision-maker are conceived not primarily in terms of establishing rights as between parties, or as entitlements, but rather as a delicate balancing between different constituencies, then the appropriateness of court supervision diminishes...

[12] An examination of the legislative purpose of the PSEA and of subsection 21(1) in particular, reveals that the statute's primary purpose is to safeguard the public interest by ensuring that appointments to the public service are based on merit and are free of discrimination and partisanship.

[13] This Court has held that the purpose of the right of appeal created by section 21 of the PSEA is not to protect the appellant's rights, but rather to prevent an appointment contrary to the merit principle: Charest v. Attorney General of Canada, [1973] F.C. 1217 (F.C.A.) at 1221. This factor suggests that deference should be shown to the Appeal Board's decision.

[14] As part of the determination of statutory intent, the presence or absence of a privative clause must also be considered. Decisions of an appeal board constituted under subsection 21(1) of the Public Service Employment Act, R.S.C., 1985, c. P-33 (the PSEA) are not protected by a privative clause. Neither is there a statutory right of appeal, although an application for judicial review of an appeal board's decision may be made under section 18.1 of the Federal Courts Act.

[15] The absence of a privative clause in conjunction with the explicit provision under section 21.1. of the Act for the Federal Court or Federal Court of Appeal to review appeal board decisions suggests a less deferential standard of review.

21.1 Despite the Federal Courts Act, an application to the Federal Court for relief under section 18 or 18.1 of that Act against a decision of a board established under subsection 21(1) or (1.1) shall be transferred to the Federal Court of Appeal if the parties to the application so agree or if the Federal Court of Appeal, on application by any of those parties, so orders on the basis that the sound administration of that part of the Public Service over which the deputy head concerned has jurisdiction would be unduly prejudiced by delay if the matter were heard and determined by the Federal Court and subject to an appeal to the Federal Court of Appeal.

21.1 Malgré la Loi sur les Cours fédérales, une demande de réparation présentée, en vertu des articles 18 ou 18.1 de cette loi, à la Cour fédérale contre une décision du comité visé aux paragraphes 21(1) ou (1.1) est renvoyée à la Cour d'appel fédérale soit sur consentement des parties, soit, à la demande de l'une d'elles, sur ordonnance de celle-ci rendue au motif que le délai d'audition devant la Cour fédérale et la Cour d'appel fédérale éventuel serait préjudiciable à la bonne administration du secteur de la fonction publique relevant de la compétence de l'administrateur général en cause.

[16] The next factor to consider is the relative expertise of the applications judge in relation to the Appeal Board. In Pushpanathan at paragraph 33, the Supreme Court identified three factors to consider when evaluating relative expertise:

[T]he court must characterize the expertise of the tribunal in question; it must consider its own expertise relative to that of the tribunal; and it must identify the nature of the specific issue before the administrative decision-maker relative to this expertise.

There are two specific issues before this Court, each of a different nature. One concerns the selection process, and is thus a question of mixed fact and law. The other is a jurisdictional issue and therefore a question of law.

[17] The relative expertise of the Appeal Board regarding the selection process must be compared with that of the applications judge. An appeal board consists of a single Recourse Officer employed by the Recourse Branch of the Public Service Commission. One of the Recourse Branch's most prominent functions is to hear appeals pursuant to subsection 21(1) of the PSEA. The number of appeals heard by appeal boards is substantial.

[18] Many Recourse Officers are lawyers, especially those who conduct subsection 21(1) appeals. Almost all Recourse Officers were appointed to their positions from within the public service and many worked in a number of federal departments prior to their appointment with the Commission.

[19] Therefore, Recourse Officers acting as appeal boards can be expected to have significant experience evaluating the testing methods used by selection boards and therefore to be more familiar with what constitutes a reasonable testing method than would an applications judge. On this issue, therefore, the Appeal Board has more expertise than the applications judge.

[20] Prior to Pushpanathan, questions of jurisdiction were generally reviewed on a correctness standard under the assumption that a reviewing judge had as much, if not more expertise, regarding legal questions as did the tribunal being reviewed. However, the Supreme Court in Pushpanathan held at paragraph 28 "that a question which "goes to jurisdiction" is simply descriptive of a provision for which the proper standard of review is correctness, based upon the outcome of the pragmatic and functional analysis." Therefore, it is no longer sufficient to state that a question of jurisdiction must be reviewed on a correctness standard without performing a more searching analysis.

[21] Although some Recourse Officers have legal training, not all of them do. Furthermore, their experience of working in various federal departments before being appointed as Recourse Officers would not have prepared them to make decisions regarding the jurisdiction of an appeal board under the PSEA. Consequently, a Recourse Officer serving as an appeal board cannot be considered a highly specialized decision-maker in relation to legal questions concerning the PSEA.

[22] In contrast, an applications judge can be assumed to be in possession of considerable expertise relating to jurisdictional questions. Consequently, in the absence of a strong privative clause that might have argued for more deference, the Appeal Board's decision relative to its jurisdiction should have been reviewed by the applications judge on a less deferential standard.

[23] On the basis of a pragmatic and functional analysis, the appropriate standard of review of the Appeal Board's decision on questions relating to the selection process is reasonableness, whereas for questions relating to its jurisdiction, the appropriate standard is correctness. These were the standards relied on by the applications judge and he was correct in doing so.

[24] Turning to the role of this Court, based on the principles articulated in Housen, supra, the question of whether the applications judge erred when he found that the Appeal Board had considered all of the appellant's allegations is a question of mixed fact and law that may only be disturbed by this Court if it finds palpable and overriding error by the applications judge.

[25] The applications judge's review of the Appeal Board's jurisdiction is a question of law and therefore subject to a review by this Court on a correctness standard.

Jurisdiction of the Appeal Board

[26] Both parties agree that the Appeal Board has no jurisdiction to review the qualifications established by the department. However, the appellant's use of the term "knowledge threshold" to refer to a method of evaluation led to some confusion in the decisions of the Appeal Board and the applications judge.

[27] An examination of the decisions below shows that both the Appeal Board and the applications judge considered the appellant's use of the term "knowledge threshold" to be equivalent to the term "qualifications". Consequently, both the Appeal Board and the applications judge arrived at the conclusion that, based on consistent jurisprudence, the Appeal Board had no jurisdiction to review qualifications established by the department.

[28] The appellant submits that the applications judge failed to distinguish between the jurisdiction of the department to establish qualifications for a particular position and the jurisdiction of an appeal board to determine whether the selection process adopted in a particular case was consistent with the merit principle by affording a basis for assessment of the candidates against such qualifications.

[29] There is no basis for this submission. In upholding the Appeal Board decision, the applications judge clearly understood the distinction between reviewing the methods used to evaluate qualifications and reviewing the qualifications themselves. He confirmed the Appeal Board's decision that it had no jurisdiction to question the qualifications established by the department. Moreover, by upholding the conclusions reached by Appeal Board subsequent to its review of the testing methods used by the selection board, the applications judge implicitly accepted the Appeal Board's power to perform such a review.

[30] Therefore, even though there is agreement that an appeal board may not review the qualifications established by a department, given the confusion generated by the appellant's use of the term "knowledge threshold", I believe it worthwhile to clarify the ambit of an appeal board's jurisdiction under the PSEA.

[31] In Mercer v. Canada (Attorney General), 2004 FCA 301, [2004] F.C.J. No. 1537 (QL), this Court recognized that two basic principles govern hiring in the public service. The first is that appointments must be based on merit as determined by the Public Service Commission.

[32] The second basic principle is that the employer is the best judge of what it needs, and therefore has the exclusive responsibility, subject to section 12.1 of the PSEA, of defining a position and of establishing the necessary qualifications for that position.

[33] As observed by Jackett C.J. in Bauer v. Canada (Public Service Commission Appeal Board), [1973] F.C. 626 (C.A.), every department in the Canadian government is created by an enabling statute. The statute defines the functions to be performed by the department and places a Minister of the Crown at its head. The Minister is vested with the management and direction of the department. Absent any statutory limitation, the Minister has the authority to determine the number and kinds of employees to have in the department as well the authority to select which persons to employ.

[34] The PSEA is the statutory limitation on the Minister's authority. It provides the mechanism for filling positions within the public service as well as various means of recourse for unsuccessful candidates.

[35] Under section 10 of the PSEA, the Commission is empowered to select and appoint the candidate who is best qualified for the position, according to the merit principle: Canada v. Ricketts, 52 N.R. 381 (F.C.A.), [1983] F.C.J. No. 944 (C.A.) (QL):

10. (1) Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission, at the request of the deputy head concerned, by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service.

10. (1) Les nominations internes ou externes à des postes de la fonction publique se font sur la base d'une sélection fondée sur le mérite, selon ce que détermine la Commission, et à la demande de l'administrateur général intéressé, soit par concours, soit par tout autre mode de sélection du personnel fondé sur le mérite des candidats que la Commission estime le mieux adapté aux intérêts de la fonction publique.

[36] "Merit" is not defined in the PSEA. Consequently, it has been up to the courts to determine its meaning. This Court has determined that "merit" in this contexts means that the best person possible will be appointed to the position, having regard to the nature of the service to be performed: Nanda v. Public Service Commission, [1972] F.C. 277 at paragraph 34 (C.A.).

[37] Section 12 empowers the Commission to establish selection standards by which candidates will be assessed as to how well they meet the qualifications determined by the department for that particular position:

12. (1) For the purpose of determining the basis for selection according to merit under section 10, the Commission may establish standards for selection and assessment as to education, knowledge, experience, language, residence or any other matters that, in the opinion of the Commission, are necessary or desirable having regard to the nature of the duties to be performed and the present and future needs of the Public Service.

12. (1) Pour déterminer, conformément à l'article 10, les principes de la sélection au mérite, la Commission peut fixer des normes de sélection et d'évaluation touchant à l'instruction, aux connaissances, à l'expérience, à la langue, au lieu de résidence ou à tout autre titre ou qualité nécessaire ou souhaitable à son avis du fait de la nature des fonctions à exécuter et des besoins, actuels et futurs, de la fonction publique.

[38] Pursuant to subsection 12(1), the Commission may establish appropriate selection standards to assess candidates with respect to the qualifications set by the department. As mentioned earlier, a department has the exclusive power to define a position and to establish the necessary qualifications. Only by virtue of section 12.1 of the PSEA may the Commission review the qualifications themselves:

12.1 The Commission may review any qualifications established by a deputy head for appointment to any position or class of positions to ensure that the qualifications afford a basis for selection according to merit.

12.1 La Commission peut réviser les qualifications établies par un administrateur général pour les nominations à tel poste ou telle catégorie de postes afin de faire en sorte que ces qualifications satisfassent au principe de la sélection au mérite.

[39] Subsection 21(1) provides a recourse mechanism for unsuccessful candidates in respect of selection processes conducted by closed competition:

21. (1) Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made by closed competition, every unsuccessful candidate may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard.

21. (1) Dans le cas d'une nomination, effective ou imminente, consécutive à un concours interne, tout candidat non reçu peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle de faire une enquête, au cours de laquelle l'appelant et l'administrateur général en cause, ou leurs représentants, ont l'occasion de se faire entendre.

[40] An appeal board constituted by the Commission under subsection 21(1) has no authority to conduct a section 12.1 review of the qualifications established by the department to ensure that they afford a basis of selection according to merit. A review of qualifications under section 12.1 of the PSEA is conducted by a Recourse Officer, not an appeal board, and must take place before the closing of the competition.

[41] Regarding an appeal board's jurisdiction under subsection 21(1) of the PSEA, Justice Décary of this Court held in Canada (Attorney General) v. Viola, [1991] 1 F.C. 373 at paragraph 10 (C.A.) that:

the function of an appeal board begins where that of the department ends, and what happens, or might have happened or should have happened, at the time the department determines the necessary qualifications, including those of language, is not a matter for the appeal board. All that may concern the appeal board is the selection of the candidate by the Commission, once the necessary qualifications have been defined by the department.

[42] This Court has consistently upheld the principle that the role of an appeal board is narrowly confined. An appeal board has "no say with respect to the qualifications which an employer-department considers necessary or desirable." The power to establish qualifications is "a function of management falling within the authority of a minister to manage his or her department under its enabling statute." Canada (Attorney General) v. Perera (2000), 189 D.L.R. (4th) 519, [2000] F.C.J. No. 829 (C.A.) (QL), leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 434.

[43] Despite the appellant's confusing use of the term "knowledge threshold", the Appeal Board correctly determined that its jurisdiction did not extend to reviewing the qualifications established by the department. The applications judge also came to the correct conclusion when he held that the Appeal Board had correctly determined its jurisdiction.

[44] The Appeal Board's detailed examination of the selection board's evaluation methods and of the department's explanations of the reasons for these methods, demonstrates that the Appeal Board understood that its jurisdiction did indeed include reviewing the selection process.

Failure of the Appeal Board to consider all the allegations

[45] The appellant's allegations focussed on the process used by the selection board to evaluate the candidates. The appellant claims that the Appeal Board improperly ignored several of her allegations regarding the suitability of the questions used as assessment tools by the selection board and that this constitutes a reviewable error.

[46] The Appeal Board summarized the appellant's allegations regarding the evaluation methods, the department's responses, and the appellant's rebuttals to the department's responses. The Appeal Board then provided detailed reasons for its decision on seven of the eleven questions.

[47] The four questions that the appellant claims were ignored by the Appeal Board were in fact dealt with in a single paragraph. The Appeal Board stated that it had reviewed the explanations provided by the department regarding the manner in which the questions had been used to assess the qualifications prescribed by the department. The Appeal Board then came to the conclusion that the explanations were reasonable and that the questions were suitable tools for evaluating the required qualifications.

[48] Therefore, I find no merit to the appellant's claim that the Appeal Board ignored any of her allegations. The Appeal Board properly turned its mind to all of the allegations put forward by the appellant. The applications judge did not commit a palpable or overriding error by finding that the appellant failed to establish that the Appeal Board committed a reviewable error.

Disposition

[49] I can discern no palpable and overriding errors in the applications judge's determination that the Appeal Board did not ignore any of the appellant's allegations. Furthermore, the applications judge committed no error of law in determining the jurisdiction of the Appeal Board.

[50] Since the applications judge's decision reveals no palpable and overriding error of fact nor any error of law, this Court may not disturb it. The appeal will therefore be dismissed with costs.

"J. Richard"

Chief Justice

"I agree

Marshall Rothstein, J.A."

"I agree

B. Malone, J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

Appeal from an Order of the Federal Court dated January 27, 2004, Court File No. T-900-02

DOCKET: A-114-04

STYLE OF CAUSE: Alison Davies v. Attorney General of Canada et al.

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: January 12, 2005

REASONS FOR JUDGMENT BY: RICHARD C.J.

CONCURRED IN BY: ROTHSTEIN J.A.

MALONE J.A.

DATED: January 28, 2005

APPEARANCES:

Mr. David Yazbeck FOR THE APPELLANT

Mr. Alex Gay FOR THE RESPONDENT, AGC

SOLICITORS OF RECORD:

Raven, Allen, Cameron, Ballantyne

& Yazbeck LLP/s.r.l. FOR THE APPELLANT

Mr. John Sims

Deputy Attorney General of Canada

Ottawa, Ontario FOR THE RESPONDENT, AGC

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Davies v. Canada (Attorney General), 2005 FCA 41

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2005 FCA 41